There's important daylight between those who are critical of the present degree of judicial power in the United States in general and those who are critical of the current Supreme Court, specifically.
If I may draw an analogy from my own professional background, I would compare the checks and balances between the three branches of the US Government with the three-body problem in physics. Unlike the two-body problem this three-body problem has no general closed form solution. There is no explicit formula for the positions of these bodies or their trajectories resulting from their interactions with each other. In the US case of the three bodies of the Congress (currently supine), the President (currently acting as if all- powerful, with any checks and balances on the actions of this office claimed to be illegitimate), and the Supreme Court (seemingly accepting and confirming the President’s position) the implication is that by removing one of the branches (the Supreme Court) the trajectories of the remaining two might lead to an outcome or position that would be very hard to change as the climate of the society changes, which it has enormously over the last 250 years as a result of extraordinary changes in technology and our knowledge, as well as perceptions of the desirable or aspirational relationships between human beings from very different traditions and backgrounds. If this analogy has any credibility, which I leave it to others to evaluate, then a goal of effectively weakening the Supreme Court to the point where it is not a co-equal branch of Government - however detestable the current majority of (In)Justices - is undesirable at best, and perilous and irresponsible at worst, much as some of us might like to see several of them held accountable, impeached, and disgraced, pour encourager (ou décourager) les autres.
We have a clear case of bad actors, jurists without even the pretense of good faith rulings whose goal is the use the Court’s power to remake the United States according to a far-right vision of what a country should properly be, with a complacent working population, and a safely ensconced ruling class whose wealth is both secure and dominant in all meaningful public arenas. It was out of sympathy for the peasantry that Henry II began his reform of the English judicial system, using “circuit judges” as the peasantry could never get a fair shake from their local barons (who, like our current Court, simply assumed that imperious power was correct in its assumptions.) How ironic that the twelfth century Britons had recourse that we do not!
Ultimately, the Court reflects the balance of societal power. Its members are almost exclusively chosen from elements of the ruling classes, and reflect these class biases in their rulings. The far right has well understood the importance of capturing the Court in order to eliminate a possibly serious challenge to their political program. Such capture began, of course, with Nixon, forcing Fortas off the Court in exchange for the execrable Rehnquist (whose final gift to the United States of American was the drunken wastrel, George W. Bush.) The current fascist alliance of plutocrats and theocrats, perfectly represented on the Supreme Court, are utterly without any principles worthy of the name. Their goal is to consolidate power in such a manner as to allow the sliver of radical elites to stay in power, democracy be damned. This has long been the goal—quite openly stated—of our ruling class: a formal democracy, where one may vote has one pleases but no vital issues are ever decided in favor of the masses because the ruling class retains an effective veto power over all popular decisions. (Including who gets to even be a candidate in the first place!)
The Supreme Court is illegitimate. Why do I say that? Not just because of its absurd and obviously politically decisions, but primarily because of its unwillingness to adopt an enforceable ethics code, allowing judges to remain who in an earlier day would have been banished. Sorry, no opinions from a group like this can be accorded legitimacy. The executive branch is also illegitimate. A criminal sits atop it issuing illegal orders everyday to a justice department that’s become a bad joke. The next Congress should boot them all out on 14th Amendment grounds, but probably won’t even try. And the Congress is illegitimate also, the product of gerrymandering, dark money and stilted representation. That California has the same number of senators as Rhode Island is preposterous and only compounded by the filibuster. So the constitution should be dumped, just like the Articles of Confederation were in their day. At least the people back then knew when something needed to be junked.
The big problem is the overuse of the "emergency" docket to grant stays in the government's favor by wrongly weighing the balance of equities and assessing which party is more likely to suffer irreparable harm. The thumb on the scale is increasingly obvious.
The secondary wrong that flows from this is that appeals courts' thoroughly briefed, cited, argued and reasoned decisions on the merits are being backburnered until the Court chooses to act. And lately it's been extremely dilatory (birthright citizenship anyone?)
In the meantime these unsigned declarations, devoid of detail, leave appeals courts in limbo without guidance.
Lastly, I see an increased tendency to move towards relitigating the facts rather than limiting themselves to arbiting the law -- and that, without briefing or oral argument.
These missteps should IMO be the focus of congressional reform efforts.
I think we all know they choose cases to leave their imprint, emergency docket or not.
In the immunity case, they didn’t want to review the evidence of trump’s criminality. Alito wanted to write a “rule for the ages,” so they made one up.
And The Six keep protecting him. In Trump cases, The Six have overturned 94% of the rulings of federal courts.
Regarding the "attack method debate" concerning our SCOTUS, as a non-lawyer, but an old school activist, it seems to me that this issue is exactly what we are facing in every area of government and industry in our country today. That is, what may be considered to be the difference between democracy and authoritarianism, and the best way to address each issue. History has shown that a direct attack in the early stages of the coup, be it with the military or judiciary branches of government, can succeed sooner than those attacks being made later. That is, the longer the regime maintains power, the harder it is to remove!
This has been our worst nightmare, and one that we are now seeing that we were never prepared for its surfacing, despite all of the warnings over a 29 year period. Now we must face the nightmare, truly at a disadvantage, especially since our SCOTUS majority supports this insurrection. Plus, Americans remain free from anyone labeling this coup a war, socially, by the deliberate instigation of segregation, and legally, openly criminal behavior by the Republican Party! One can certainly ask, how can we deal with the coup if we are unable to openly identify it with a name for the citizens?
I won't go into the endless examples used by the Republican Party's ability to control the narrative in this area, but give only one example: the label "Antifa" used to describe those opposing fascism! The correct term for this action is Anti-Fascism," but Republicans were allowed to bastardize the word to eliminate its meaning! That is because we ever accepted the possibility that we were at war and the opposition was actually beginning to change wording to support their coup!
Now, what if we translate these examples into the discussion of the Judicial system and our SCOTUS? Has our SCOTUS been supporting a coup because they believe it to be the correct interpretation of our Constitution, or because they agree with the premise of the Republican Party that war is necessary because white people were slowly losing their majority in America? And that allowing the masses more and more freedoms of choice, from unionization to working from home, to sexual behavior, needed to be stopped, and the nation must be led by the wealthy once again.
Unfortunately, we have a President whose morals ape a Mafia Don rather than even the snobby rich executive! So, added to the war for America's course going forward, we now have an open and legal pay-to-play system with almost no legal boundaries.
Back to the issue here of how to address the SCOTUS, it seems to me that behavior dictates how to describe actions. If we believe that the system remains viable, then we can operate within the system and merely address issues of law. However, if we see the system practiced by the SCOTUS to be presenting support for the coup, and all the actions I mention, then possibly the best approach would be to accept this truth; we are at war, and therefore we need to operate in ways that we think will convince people to actually recognize this, but also support a defence of our democracy!
Should the Dems retake the House and the Senate in the midterms, they MUST immediately begin impeachment proceedings against Beer Boy Kavanaugh and Sammy “the Shill” Alito and Clarence “RV for Free!” Thomas. The first for perjury, the last two for bribe-receiving. Any new Dem POTUS in 2028 must IMMEDIATELY appoint and confirm 4 new liberal justices. Nobody says we stop at 9 — that is just custom. Kavanaugh and Alito and Thomas MUST GO. Gorsuch can stay, but only if he referred to forever as Weasel Gorsuch. And the Handmaiden can stay but she must submit to any male justice.
If illegitimacy is the point, then look to Sen. McConnell and the confirmation of some Justices. More broadly we are in a trifecta period when both Houses, Presidency and majority of the Court align (i.e., arguably in part, Chase Court, but with a dominant Congress; Hughes Court; Warren Court; Roberts Court). The problem is not "in the stars", but lays with Rucho and the resulting enfeebled Congress. A phoenix rise in Congress to trim temporal Presidential absolute immunity, or a modified Confederation may be future off ramps. The Constitution and the People are imperfect and pendulums swing. Prof. Vladeck and many federal courts play for time by pruning rather than uprooting.
Steve, I'm a paid subscriber and read your posts with some enthusiasm. As much as I appreciate your expertise and your candor, I too, wondered why you did not more explicitly raise an issue of corrupt intent when the court is so blatantly playing Calvin ball.
In my perhaps less professional view, a core problem with the current Court is that the extreme power concentrated in only 9 humans encourages those who select those 9 humans to go to extraordinary lengths to bias the selection in favor of those with whom they agree on particular issues. During my adult life, this began with the Senate rejection of Robert Bork's nomination and reached its peak (I hope!) with McConnell's refusal to hold a vote on Merrick Garland's nomination. A possible solution is to restructure the Court along the lines of the circuit courts of appeal: many judges from which a panel is randomly selected to decide each case, combined with some provision for en banc hearings in really extraordinary circumstances. If there were about 25 Justices and cases were heard by a random, 9 Justice panel, the influence of any single Justice would be greatly reduced. An advantage of this reform is that I THINK that it could be accomplished without an amendment of the Constitution. In addition, I think that the Senate confirmation process must be reformed, but that WILL require an amendment.
I completely agree that we should maintain the current authority of the Court as a separate, equal branch of our government, primarily because I don't think that anyone has articulated an alternative structure that I think has a chance of working. Putting all of our faith in the elected branches when roughly one-third of the eligible electorate fails to vote even in high-turnout elections seems foolish to me.
Unless the Ds execute a triple play ( Congress and POTUS) nothing is changing, the law says what SCOTUS says it is … you don’t like it, you may have to change your lesson plans
I hope everyone who celebrated had a happy Hanukkah celebration.
I support an independent judiciary. I don't know if I would change the basics except for term limits and maybe a retirement age. Judicial ethics reform can fit within the current constitutional text. It would require a major change in constitutional practice.
I understand your caution. BUT. I read your book. A certain major shift occurred after the Kennedy retirement. There is a major problem with PERSONNEL.
Vladeck has opposed court expansion. But the current personnel are a problem. I fear, in effect, that the goal is to ensure car thieves are less reckless with their ill-gotten gains.
And the nice-sounding proposals will both be long shots and will constantly be corrupted by the current personnel. I hope the new book addresses this problem.
I don't understand how Moyn or Doerfler can argue that eliminating the Court will give "power to the people" (Right On!), given the obvious UNdemocratic nature of the federal government (EC, Senate). That aside,
I'm basically on your side, with some additions. First, we need to reform the Court in order to solve the current problem of partisan dishonesty. That means expanding not just the Court but all the federal courts. Doubling the size would be a start. Other reforms include potentially establishing an age limit for judges or creating term limits; restrictions on the "shadow docket"; and barring the reliance on "evidence" outside the record and not subject to judicial notice. Second, following up on your point about Congressional ability to check the Court, we need both Congress and the Court to recognize that Art. I, Sec. 8, cl. 18 gives Congress the necessary (heh) power to, e.g., establish a code of ethics for the judiciary and make it enforceable. Third, we need a way to take a page from John Hart Ely and limit the judiciary to (a) protecting political rights including the right to vote, (b) protecting the rights of the historically excluded such as women, racial or ethnic minorities, and sexual and gender minorities, (c) statutory interpretation, and (d) assuring due process in judicial proceedings.
If I may draw an analogy from my own professional background, I would compare the checks and balances between the three branches of the US Government with the three-body problem in physics. Unlike the two-body problem this three-body problem has no general closed form solution. There is no explicit formula for the positions of these bodies or their trajectories resulting from their interactions with each other. In the US case of the three bodies of the Congress (currently supine), the President (currently acting as if all- powerful, with any checks and balances on the actions of this office claimed to be illegitimate), and the Supreme Court (seemingly accepting and confirming the President’s position) the implication is that by removing one of the branches (the Supreme Court) the trajectories of the remaining two might lead to an outcome or position that would be very hard to change as the climate of the society changes, which it has enormously over the last 250 years as a result of extraordinary changes in technology and our knowledge, as well as perceptions of the desirable or aspirational relationships between human beings from very different traditions and backgrounds. If this analogy has any credibility, which I leave it to others to evaluate, then a goal of effectively weakening the Supreme Court to the point where it is not a co-equal branch of Government - however detestable the current majority of (In)Justices - is undesirable at best, and perilous and irresponsible at worst, much as some of us might like to see several of them held accountable, impeached, and disgraced, pour encourager (ou décourager) les autres.
I’m waiting for the court to declare parts of the Constitution to be unconstitutional.
We have a clear case of bad actors, jurists without even the pretense of good faith rulings whose goal is the use the Court’s power to remake the United States according to a far-right vision of what a country should properly be, with a complacent working population, and a safely ensconced ruling class whose wealth is both secure and dominant in all meaningful public arenas. It was out of sympathy for the peasantry that Henry II began his reform of the English judicial system, using “circuit judges” as the peasantry could never get a fair shake from their local barons (who, like our current Court, simply assumed that imperious power was correct in its assumptions.) How ironic that the twelfth century Britons had recourse that we do not!
Ultimately, the Court reflects the balance of societal power. Its members are almost exclusively chosen from elements of the ruling classes, and reflect these class biases in their rulings. The far right has well understood the importance of capturing the Court in order to eliminate a possibly serious challenge to their political program. Such capture began, of course, with Nixon, forcing Fortas off the Court in exchange for the execrable Rehnquist (whose final gift to the United States of American was the drunken wastrel, George W. Bush.) The current fascist alliance of plutocrats and theocrats, perfectly represented on the Supreme Court, are utterly without any principles worthy of the name. Their goal is to consolidate power in such a manner as to allow the sliver of radical elites to stay in power, democracy be damned. This has long been the goal—quite openly stated—of our ruling class: a formal democracy, where one may vote has one pleases but no vital issues are ever decided in favor of the masses because the ruling class retains an effective veto power over all popular decisions. (Including who gets to even be a candidate in the first place!)
The Supreme Court is illegitimate. Why do I say that? Not just because of its absurd and obviously politically decisions, but primarily because of its unwillingness to adopt an enforceable ethics code, allowing judges to remain who in an earlier day would have been banished. Sorry, no opinions from a group like this can be accorded legitimacy. The executive branch is also illegitimate. A criminal sits atop it issuing illegal orders everyday to a justice department that’s become a bad joke. The next Congress should boot them all out on 14th Amendment grounds, but probably won’t even try. And the Congress is illegitimate also, the product of gerrymandering, dark money and stilted representation. That California has the same number of senators as Rhode Island is preposterous and only compounded by the filibuster. So the constitution should be dumped, just like the Articles of Confederation were in their day. At least the people back then knew when something needed to be junked.
I blame the makeup of the court. Two presidents who lost the popular vote have five confirmed justices on the court.
The big problem is the overuse of the "emergency" docket to grant stays in the government's favor by wrongly weighing the balance of equities and assessing which party is more likely to suffer irreparable harm. The thumb on the scale is increasingly obvious.
The secondary wrong that flows from this is that appeals courts' thoroughly briefed, cited, argued and reasoned decisions on the merits are being backburnered until the Court chooses to act. And lately it's been extremely dilatory (birthright citizenship anyone?)
In the meantime these unsigned declarations, devoid of detail, leave appeals courts in limbo without guidance.
Lastly, I see an increased tendency to move towards relitigating the facts rather than limiting themselves to arbiting the law -- and that, without briefing or oral argument.
These missteps should IMO be the focus of congressional reform efforts.
I think we all know they choose cases to leave their imprint, emergency docket or not.
In the immunity case, they didn’t want to review the evidence of trump’s criminality. Alito wanted to write a “rule for the ages,” so they made one up.
And The Six keep protecting him. In Trump cases, The Six have overturned 94% of the rulings of federal courts.
It’s the six justices who are the problem.
Happy holidays to one and all!
Regarding the "attack method debate" concerning our SCOTUS, as a non-lawyer, but an old school activist, it seems to me that this issue is exactly what we are facing in every area of government and industry in our country today. That is, what may be considered to be the difference between democracy and authoritarianism, and the best way to address each issue. History has shown that a direct attack in the early stages of the coup, be it with the military or judiciary branches of government, can succeed sooner than those attacks being made later. That is, the longer the regime maintains power, the harder it is to remove!
This has been our worst nightmare, and one that we are now seeing that we were never prepared for its surfacing, despite all of the warnings over a 29 year period. Now we must face the nightmare, truly at a disadvantage, especially since our SCOTUS majority supports this insurrection. Plus, Americans remain free from anyone labeling this coup a war, socially, by the deliberate instigation of segregation, and legally, openly criminal behavior by the Republican Party! One can certainly ask, how can we deal with the coup if we are unable to openly identify it with a name for the citizens?
I won't go into the endless examples used by the Republican Party's ability to control the narrative in this area, but give only one example: the label "Antifa" used to describe those opposing fascism! The correct term for this action is Anti-Fascism," but Republicans were allowed to bastardize the word to eliminate its meaning! That is because we ever accepted the possibility that we were at war and the opposition was actually beginning to change wording to support their coup!
Now, what if we translate these examples into the discussion of the Judicial system and our SCOTUS? Has our SCOTUS been supporting a coup because they believe it to be the correct interpretation of our Constitution, or because they agree with the premise of the Republican Party that war is necessary because white people were slowly losing their majority in America? And that allowing the masses more and more freedoms of choice, from unionization to working from home, to sexual behavior, needed to be stopped, and the nation must be led by the wealthy once again.
Unfortunately, we have a President whose morals ape a Mafia Don rather than even the snobby rich executive! So, added to the war for America's course going forward, we now have an open and legal pay-to-play system with almost no legal boundaries.
Back to the issue here of how to address the SCOTUS, it seems to me that behavior dictates how to describe actions. If we believe that the system remains viable, then we can operate within the system and merely address issues of law. However, if we see the system practiced by the SCOTUS to be presenting support for the coup, and all the actions I mention, then possibly the best approach would be to accept this truth; we are at war, and therefore we need to operate in ways that we think will convince people to actually recognize this, but also support a defence of our democracy!
Should the Dems retake the House and the Senate in the midterms, they MUST immediately begin impeachment proceedings against Beer Boy Kavanaugh and Sammy “the Shill” Alito and Clarence “RV for Free!” Thomas. The first for perjury, the last two for bribe-receiving. Any new Dem POTUS in 2028 must IMMEDIATELY appoint and confirm 4 new liberal justices. Nobody says we stop at 9 — that is just custom. Kavanaugh and Alito and Thomas MUST GO. Gorsuch can stay, but only if he referred to forever as Weasel Gorsuch. And the Handmaiden can stay but she must submit to any male justice.
Five decades in the making if not more….
FYI, my guess is never as good as yours, but thanks for the presumption! Happy holidays.
If illegitimacy is the point, then look to Sen. McConnell and the confirmation of some Justices. More broadly we are in a trifecta period when both Houses, Presidency and majority of the Court align (i.e., arguably in part, Chase Court, but with a dominant Congress; Hughes Court; Warren Court; Roberts Court). The problem is not "in the stars", but lays with Rucho and the resulting enfeebled Congress. A phoenix rise in Congress to trim temporal Presidential absolute immunity, or a modified Confederation may be future off ramps. The Constitution and the People are imperfect and pendulums swing. Prof. Vladeck and many federal courts play for time by pruning rather than uprooting.
Steve, I'm a paid subscriber and read your posts with some enthusiasm. As much as I appreciate your expertise and your candor, I too, wondered why you did not more explicitly raise an issue of corrupt intent when the court is so blatantly playing Calvin ball.
In my perhaps less professional view, a core problem with the current Court is that the extreme power concentrated in only 9 humans encourages those who select those 9 humans to go to extraordinary lengths to bias the selection in favor of those with whom they agree on particular issues. During my adult life, this began with the Senate rejection of Robert Bork's nomination and reached its peak (I hope!) with McConnell's refusal to hold a vote on Merrick Garland's nomination. A possible solution is to restructure the Court along the lines of the circuit courts of appeal: many judges from which a panel is randomly selected to decide each case, combined with some provision for en banc hearings in really extraordinary circumstances. If there were about 25 Justices and cases were heard by a random, 9 Justice panel, the influence of any single Justice would be greatly reduced. An advantage of this reform is that I THINK that it could be accomplished without an amendment of the Constitution. In addition, I think that the Senate confirmation process must be reformed, but that WILL require an amendment.
I completely agree that we should maintain the current authority of the Court as a separate, equal branch of our government, primarily because I don't think that anyone has articulated an alternative structure that I think has a chance of working. Putting all of our faith in the elected branches when roughly one-third of the eligible electorate fails to vote even in high-turnout elections seems foolish to me.
Unless the Ds execute a triple play ( Congress and POTUS) nothing is changing, the law says what SCOTUS says it is … you don’t like it, you may have to change your lesson plans
I hope everyone who celebrated had a happy Hanukkah celebration.
I support an independent judiciary. I don't know if I would change the basics except for term limits and maybe a retirement age. Judicial ethics reform can fit within the current constitutional text. It would require a major change in constitutional practice.
I understand your caution. BUT. I read your book. A certain major shift occurred after the Kennedy retirement. There is a major problem with PERSONNEL.
Vladeck has opposed court expansion. But the current personnel are a problem. I fear, in effect, that the goal is to ensure car thieves are less reckless with their ill-gotten gains.
And the nice-sounding proposals will both be long shots and will constantly be corrupted by the current personnel. I hope the new book addresses this problem.
I don't understand how Moyn or Doerfler can argue that eliminating the Court will give "power to the people" (Right On!), given the obvious UNdemocratic nature of the federal government (EC, Senate). That aside,
I'm basically on your side, with some additions. First, we need to reform the Court in order to solve the current problem of partisan dishonesty. That means expanding not just the Court but all the federal courts. Doubling the size would be a start. Other reforms include potentially establishing an age limit for judges or creating term limits; restrictions on the "shadow docket"; and barring the reliance on "evidence" outside the record and not subject to judicial notice. Second, following up on your point about Congressional ability to check the Court, we need both Congress and the Court to recognize that Art. I, Sec. 8, cl. 18 gives Congress the necessary (heh) power to, e.g., establish a code of ethics for the judiciary and make it enforceable. Third, we need a way to take a page from John Hart Ely and limit the judiciary to (a) protecting political rights including the right to vote, (b) protecting the rights of the historically excluded such as women, racial or ethnic minorities, and sexual and gender minorities, (c) statutory interpretation, and (d) assuring due process in judicial proceedings.